Workplace needs privacy policy

Howard Levitt, Financial Post12.20.2012

Every Canadian has a right to protect their biographical core of personal information. That includes information revealing intimate details of their lifestyle and personal choices. One can readily contemplate the sort of highly personal and private information this might yet be found to entail.

Dismissing a pregnant employee is challenging enough; firing her the day after she breaks the news doesn't exactly ameliorate your plight.

Last week, I referenced employee privacy rights, in particular, whether someone at an office party can encapsulate embarrassing moments for eternity. But privacy issues are attached to a host of circumstances. Can employers videotape employees' activities in a parking lot behind the plant? Can an employee snoop in another's personal e-mail or view what has been stored on their hard drive? Or can the employer?

British Columbia, Manitoba, Saskatchewan, Yukon, and Quebec all have legislation that allows for a lawsuit for invasion of privacy. In the others, there is no statutory protection for privacy so that laws made by judges in non-union workplaces and by arbitrators in unionized ones will apply.

In a case last month, the Supreme Court of Canada defined what the right of privacy entails: Every Canadian has a right to protect their biographical core of personal information. That includes information revealing intimate details of their lifestyle and personal choices. One can readily contemplate the sort of highly personal and private information this might yet be found to entail.

Should employers be concerned? Companies routinely provide equipment (computers, laptops, BlackBerrys, tablets) as well as an e-mail address and access to the internet to allow their employees to carry on its business. They also generally permit some personal use. Employees could potentially send and receive e-mails or store and download Internet material that is very personal or highly inappropriate, from details surrounding a divorce through inappropriate jokes to criminal possession of child pornography.

There are also employees who snoop on colleagues.

Sandra Jones, a Bank of Montreal employee who held her accounts with the bank, discovered that Winnie Tsige, who was in a common-law relationship with Jones's former husband, did just that. Tsige worked at a different branch of the bank but her position afforded her full access to Jones's banking records. Jones discovered that, contrary to bank policy, Tsige accessed her records 174 times in four years. Jones complained to the bank, and Tsige was suspended and deprived her of her bonus. Not satisfied, Jones sued Tsige for invasion of privacy.

Notwithstanding the lack of privacy legislation in Ontario, its Court of Appeal recognized, for the first time, the lawsuit of ''intrusion upon seclusion'' and awarded Jones $10,000. In his judgment, Justice Sharpe said: "A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of privacy.

"Claims from individuals who are sensitive or unusually concerned about their privacy are excluded," he added.

Does this decision carry with it warnings for employers who monitor employees' online activities? If employers don't monitor their equipment's usage for abuses, to what extent might they be vicariously liable? Can employers review employees' emails to see if they are complying with company policy? Can they search the hard drive on employer supplied computers for any inappropriate material stored there?

These issues should be addressed in a workplace policy that all employees acknowledge receiving, and under which they agree:

- The employer owns the equipment and workplace systems;

- The employee has no expectation of privacy when using employer-supplied equipment;

- Although personal use is permitted, the employee will not store personal information on employer-supplied equipment;

- The employer may monitor use of the equipment;

- Only passwords supplied by the employer are permitted;

- Improper use will lead to discipline, including dismissal;

The employer must implement and enforce the policy. As with any corporate policy, failure to do so may allow employees to argue that the employer has condoned (i.e. forgiven) their improper usage and then be unable to rely upon it. If the employer adopts this policy and practice, it will be immunized from any ramifications from this lawsuit.

Howard Levitt is senior partner of Levitt LLP, (levittllp.ca) employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada.

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